Online bullying has become a very real concern for children and their parents. Some recent press illustrates, once again, the horrendous consequences online harassment can have.
The most recent high profile case of the 12 year old in Florida that committed suicide as a result of relentless online (and school) bullying points to the many consequences that this unacceptable behavior can have on the victim, the youthful perpetrators, and the parents.
Beyond the horrible loss of the child, other consequences are mounting. The youthful bullies have been charged with felonies, which will, along with their conscience, follow them forever. The sheriff is now contemplating criminal charges against the bullies‘ parents.
But these are likely to be only first steps in this very tragic event. There will likely be civil wrongful death lawsuits as well. This is the topic of this article.
Liability of the School
The issues will be addressed from a New Mexico law perspective and may not apply to other states.
The press seems to indicate that the bullying was severe, public, and known by teachers and other school officials. The question will immediately arise regarding liability of the school and school district for the wrongful death of the young girl.
Prior to reading about this tragic case, I wrote an article on a recent New Mexico Supreme Court case on just this subject. Because of the broad applicability of the principals set forth in the article beyond schools to all government and business facilities, I also wrote a follow up article.
One thing that is clear from the cases is that, in New Mexico, the school would be held liable if in fact the school had knowledge of the bullying and failed to address it. In the Florida case, the suggestions have been that the school did have knowledge and not only failed to address the situation with the offending students, also failed to notify the parents of the victim or the bullies.
In short, if the facts were as suggested, in New Mexico the school would be facing liability for the wrongful death of its student.
Liability of the Parents
The issue of liability of parents for the bullying behavior of their child is a slightly more complex. There are a number of considerations. Obviously, knowledge of the parents would be important. However, that is not the end of it even if there was no knowledge, there might be liability.
By statute, a parent‘s liability for the wrongful acts of a child is limited to $4000. The New Mexico Children‘s Code, §32A-2-27(A) states as follows:
“Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action … from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person….”
This seems pretty clear cut. In actuality, this is not the end of the discussion. We have an older article addressing this issue.
In a nutshell, the knowledge of the parent is key. If the parents knew of the behavior and did nothing to stop it, then they can be held liable above and beyond the $4000 cap not for the negligence of the child but for their own negligence.
Even This is Not the End of the Story on Liability.
Homeowners Insurance – Back to Premises Liability
This leads us back to the discussion above regarding premises liability law in New Mexico. More specifically, a case such as the one in Florida would raise issues of homeowner‘s insurance.
This is an issue that will be played out in the future. There will be a very good argument for liability under these policies. The insurance companies will most likely argue for exclusion of coverage for intentional tortious acts.
However, homeowner‘s insurance has pretty broad coverage. After all, homeowner‘s insurance covers injuries to guests caused by drunken accidents, reckless behavior, inherently dangerous conditions of the property, dangerous conditions on the property created by the homeowner, and so on.
Perhaps most analogous to the bullying situation would be coverage for dog bites. Homeowners‘ clearly covers injuries to guests from dog bites. There is trend toward exclusions for “dangerous breeds.” However, these exclusions arise at the inception of the policy based upon perceived dangerousness of the breed. They do not arise and cannot be applied in hindsight when it is later discovered that the dog was indeed dangerous.
This situation has some similarity to bullying (without suggesting or implying that children are dogs). After all, most parents would never expect their children to behave in such an atrocious behavior. Nor can insurance companies define all kids as “dangerous” with respect to bullying.
Presuming lack of prior knowledge, it is only in hindsight after the occurrence that the parents learn that the child was in fact dangerous. Where there is knowledge of the parents, an entirely different and more difficult insurance coverage analysis would be in order.
If your child is a victim of bullying, seek help. Bring it to the attention of the school. Bring it to the attention of the other parents. In cases of ongoing extreme bullying as appears to be the situation in the Florida case, bring it to the attention of the police.
If your child has been seriously harmed by bullying, contact an experienced personal injury attorney. When all else fails, money talks and schools like everyone else hates to part with it.